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Tuesday, June 25, 2013

Excessively long posts are self-defeating. On the other hand, this topic requires a great deal of information. I've tried to be as clear as possible, but this post is somewhat condensed. If one does not wish to go through the entire thing, one can read the outline, below, and Section X at the end.Thank you to Rabbis Shimon Kalman Goldstein, Etan Schnall, and Chaim B., for, among other things, many of the mar'ei mekomos.

The conceptual outline of this piece is very simple, although the discussion in the main body of the post will not always follow this order.

1. There is a well known idea in the context of קנאים פוגעים בו that motive is of cardinal importance. We find this in Chazal as brought in the first Rashi in our parsha, that the other Shevatim castigated Pinchas for his act of קנאות by denigrating his motivation.
2. This is not generally found outside of the context of קנאים פוגעים בו. One assumes that it is exclusive to קנאים פוגעים בו because it is extra-judicial, it is הלכה ואין מורין כן, and because it is by its own terms limited to קנאים, a zealot of single-minded focus.
3. This concept does appear in the words of Abba Shaul in the case of יבום, but we do not pasken like Abba Shaul.
4. We are surprised, however, to find poskim that say that in cases of דחיה, like פיקוח נפש being דוחה שבת and בזיון השם being דוחה the issur of מחיקת השם, the agent's motivation is also vitally important.
5. As it turns out, the idea we thought to be exclusive to the din of קנאים is a rule with very broad application to all cases of דחיה.

The Beis Haleivi is exactly like him, and even with Reb Shlomo Zalman and the Beis Halevi, I found it hard to accept.

I realize that this is not Reb Shlomo Zalman verbatim. But Rabbi Neuwirth was a great talmid chacham and an Ish Ne'eman, and if he quoted RSZ, he can be trusted to be precise. I am going to analyze the words on that basis.

As I understand it, he is giving us three reasons for not asking a mechallel Shabbos to do Pikuach Nefesh. I don't understand any of them.

Reason 1. It is, for the mechallel Shabbos, like נתכוין לבשר חזיר ועלה בידו בשר טלה. Since he is not motivated by a desire to save life, but instead for his career or his honor or for income, his intention is to do chillul Shabbos. As it happens, what he did was not chillul Shabbos. So it's נתכוין לבשר חזיר ועלה בידו בשר טלה. Apparently he is saying that the even though the intent is to save a life, if the motive is self-interest, we view it as being נתכוין לבשר חזיר. Since in fact it was pikuach nefesh, it is in the end עלה בידו בשר טלה.

I don't understand this at all.

Problem 1: If what he ends up doing is called בשר טלה, then his intent to accomplish that goal should be called נתכוין לבשר טלה. Assuming, as Reb Shlomo Zalman does in this explanation, that in fact it is בשר טלה, then it seems to me to be a case of a man that would eat treif if he would have it, but in fact he is eating kosher food, and he knows it's kosher. He doesn't care if it's kosher, but he knows it's kosher. This man has done nothing wrong.

Problem 2. His intention is to save a life. I don't think we can say that his motivation is purely self-interest. But even if we agree that his motivation is self-interest, how is that נתכוין לבשר חזיר? If a bad motive takes away the mitzva, and so there's no din of Dechiya, then the second half of the sentence doesn't make sense- ועלה בידו בשר טלה. Why is it בשר טלה ? If for him there is no dechiya, then he was mechallel Shabbos, and it's בשר חזיר.

So, in short, I don't know how Reb Shlomo Zalman can make a כוי out of this, and say that it's נתכוין לבשר חזיר ועלה בידו בשר טלה.

Reason 2. כיון שבאמת יש כאן חילול שבת, ויתכן שהרופא נחשב כאינו מחלל שבת רק אם כוונתו להצלה ולא אם מכוון לתשלום. This is far more serious. Contrary to the assumption of reason one, where we said that what he did was not chillul Shabbos, and the problem was only his bad intention, now he says that it could be that what he does is actual chillul Shabbos. Why? Because it's only called "not chillul Shabbos" when he is motivated by the need to save a life. If he is motivated by self-interest, it is chillul Shabbos.
According to reason 2, there is no din of dechiyah if he is doing it not for the mitzva of Pikuach Nefesh.
The only explanation for this, I think, is the din of Mitzvos Tzrichos Kavana (Psachim 114b.) To be docheh, you need to fulfill a Mitzva. If you don't have kavana, you don't fulfill the mitzvah. Therefore, there is no dechiyah. I don't understand that. Why would Kavana matter in cases of Pikuach Nefesh? I don't see in the Gemara that the dechiyah power of Pikuach Nefesh is because of it being a mitzva per se; I thought the preservation of life was an inherent value, irrespective of Kavana. As the Rambam says,

Isn't what I'm saying logical? We pasken Pikuach Nefesh is docheh Shabbos; whether it's based on Reb Shimon ben Menasyah's אמרה תורה חלל עליו שבת אחת כדי שישמור שבתות הרבה or its based on Shmuel's וחי בהם ולא שימות בהם, it seems to me that the dechiyah should be looked at as a machshir, not a mitzvah.

And it's not only the Radvaz. But Reb Elchonon (Kovetz Shiurim Ksuvos 74, #249) says this too, and he says that it's a klal in all mitzvos:

But you will say that we don't necessarily hold like the Radvaz, and we don't hold like Reb Elchonon, and we hold that Shechita and Piryah verivyah and yibum are like any other mitzva as far as tzrichos kavana. I still think that the dechiya of Pikuach Nefesh is because of the metziyus of Pikuach Nefesh, not its status as a mitzva, as you see in the Rambam I brought above, so kiyum hamitzva is irrelevant. (My argument is basically the Radvaz in a different suit. He is saying a svara that the logic of Tzrichos Kavana does not automatically apply to a mitzva that is a machshir. I am saying that Pikuach Nefesh is a super-machshir, and that even if you don't agree with the Radvaz by Shechita and Tevilla, you would agree that his svara applies to Pikuach Nefesh. As far as Reb Elchonon, it's pretty obvious that Pirya VeRivyah and Pikuach Nefesh are a logical match- creating life/saving life, except that Pirya VeRivya is not docheh Shabbos, just as there's a machlokes whether resurrecting the dead is docheh shabbos. See Igros YD II 174:end of 1,

So my problem with Reason 2 is twofold: I don't think Pikuach Nefesh is based on the same logic as Asei Docheh Lo Saaseh, and therefore you don't need a kiyum of the Mitzva of Pikuach Nefesh for the Dechiya.. And even if the mechanism of Pikuach Nefesh Docheh Shabbos was identical with the din of Asei Docheh Lo Saaseh, it still wouldn't need kavana according to the Radvaz.

Reason 3. Based on the Beis Haleivi, Oneis is a petur only for a person who wouldn't do this otherwise, for a person that would only be mechalleil Shabbos because of an extreme necessity. Since this man would be mechallel Shabbos even without oneis, it's real chillul Shabbos.

The Beis Haleivi's added svara is that there's no petur oneis for a habitual mechallel Shabbos b'meizid. First, I have the same problem with this as I had on reason 2: Even agreeing with the basic rule of the Beis Haleivi, the application to Pikuach Nefesh is hard to understand. If Pikuach Nefesh is docheh because of the great value of life, then it has nothing to do with the general din of Onsim. Additionally, let me ask you a few questions.
1. If you have a habitual murderer, who kills people at the drop of a hat, and he is attacked by a crazy man with a gun, and he kills him in self defense. According to the Beis Halevi, is that called an act of Retzicha? Would he have a petur of קים ליה בדרבה מיניה because it was a ma'aseh of Retzicha? I doubt it. If so, being mechallel Shabbos in defense of the sick person is not chillul Shabbos either.
2. What if the official executioner of Beis Din enjoys his work. He is motivated not by the mitzva of ובערת הרע מקרבך, and he doesn't care about מצוה לשמוע דברי חכמים. He's motivated by a desire for money and a pension when he retires. Or maybe he just enjoys what he does. Is he called a Rotzei'ach? Hard to believe.

By the way, Rav Auerbach didn't say that if the only person available is a Jewish doctor who is a Mechallel Shabbos, you should let the patient die. He only said אפשר דבני"ד גרע טפי, כיון שבאמת יש כאן חילול שבת, ויתכן שהרופא נחשב כאינו מחלל שבת. But that's because you're you're docheh lifnei Iveir for פקוח נפש.You might think that Rav Shlomo Zalman's halacha has little practical relevance, because in actual cases of Pikuach Nefesh one would be totally focused on making life-saving decisions rather than on determining how frum the doctor is. Thank you Chaim B for bringing up that Reb Shlomo Zalman's idea has a fascinating practical application in the case of a Shabbos Bris. Any Jew can be a Mohel, and the Bris is considered a proper Bris even if the Mohel is a mechallel Shabbos b'farhesya. BUT- if you have a Shabbos Bris, according to RSZ you cannot take a mechallel Shabbos to make the Bris. (Don't be so sure such a thing will never happen. If you can't get a frum Mohel for Shabbos, but a friendly neighbor mechallel shabbos urologist offers to do the bris, you have a problem.) My resistance in accepting RSZ's halacha in the case of Pikuach Nefesh will not pertain here. Here, it is definitely the Mitzva that is Docheh Shabbos. If the Mohel doesn't care about the Mitzva of Milah, and he's doing it only for the money, then according to RSZ he can't do the Milah on Shabbos. Unlike Pikuach Nefesh on Shabbos, where even if there's a lifnei iveir problem by asking the mechallel Shabbos to help, we would ask him anyway because Pikuach Nefesh is docheh our lifnei iver problem, that would not be true by millah. Millah is not docheh the issur of lifnei iveir. So RSZ would hold lehalacha that a mechallel Shabbos Mohel cannot be asked to do the bris on Shabbos.However, that is only true if you hold the Shabbos is Dechuya because of Milah. If Shabbos is Hutra because of Millah, then according to the Rambam in the Teshuva I bring below in V, RSZ's din would not apply to a Mechallel Shabbos Mohel who's only doing it for the money. BUT we don't know that RSZ was working with the Rambam in the Teshuva. He might hold that even if it's hutra, on the basis of Mitzvos Tzrichos Kavana having a non-shomer shabbos might be a problem- even Hutra might not apply when the Mohel is not fulfilling a Mitzva. Or maybe it doesn't matter, because the child has a proper bris. Then, we're back to the beginning again, namely, my argument by Pikuach Nefesh- that where the purpose of the Dechiyah is to yield a certain result, we shouldn't care whether the actor is being mekayeim a mitzva, all we should care is whether we are getting the desired result, but RSZ holds not like that, and says that you can't have a non-shomer Shabbos do it. (Discussions of whether מילה בשבת is הותרה or דחויה can be found in the Gaon in YD 266 and the Shaagas Aryeh 59 and the Netziv in Haamek She'eilah 10.) In any case, here are a number of Sugyos each of which is highly relevant.

I

Reb Elchonon and the Mishna Berura on Kilayim in Tzitzis.

Reb Elchonon in Ksuvos on 74, number 250, klers whether a person that wears tzitzis סדין בתכלת without kavana will be over on both the lav of Shatnez and bittul asei of tzitzis. But his tzad kula is that tzitzis is different, that all you need is that it is being worn like that. This indicates that by other mitzvos it was pashut to him that you'd be over. He notes there that the Biur Halacha in 60:4 says that lechoira it should be a bittul asei when you grab a talis for an aliyah without kavana. But he's metzaded to be meikil only because he doesn't mean it for regular levisha.

So Reb Elchonon and the Mishna Berura agree that if מצות צריכות כוונה, then in cases of dechiya, if you didn't have kavana, you would be over the lav or have a bittul asei.

This might seem different than the Chinuch by Sukkah Gezula, but we will see that it is not different at all.

II

The Chasam Sofer in Likutei Teshuvos 6:8, last paragraph, says that if some rasha carves the name of Hashem in a dirty place, you can destroy it without worrying about the general issur of לא תעשון כן, because the din of לא תעשון כן is to prevent bizayon, and here, destroying the Shem prevents greater bizayon. But he says, in that last paragraph, that you should have an adult do it, not a child, because a child won't have the kavana of saving the Sheim from Bizayon, he'll just have a good time smashing it away, and he'll end up with the issur of לא תעשון כן.

The Rambam and Raavad pasken that he's pattur, because you look at his act, not his intent. (Of course, in a case of intent for pikuach and he got only dagim, he's pattur because of meleches machsheves too.)

A. Reb Meir Simcha (Ohr Sameiach 2 Shabbos 16) says that our Gemara is only talking about missas beis din and Korban, but certainly the person needs kapara no less than the woman in "va'hashem yislach lah," in Nazir 23a, where the Gemara says that a person who thought the food was treif and ate it anyway, and it turned out it was kosher, this person needs kapara and even is chayav Makkas Mardus. In 2 Shegagos 15, the Rambam clearly says that the petur is from the Korban, and if you read the Rambam here, it''s clear that he means that also, because he switches from פטור מכלום by a person that means to save a life to just פטור in the case of the sheigitz fisherman that pulls out a child.

B. Reb Meir D. Plotzki (Kli Chemda in Vayechi) says that our Gemara is talking about the Korbon for a Shogeig, but even Rabba agrees that the malefactor is at least chayav Kareis, maybe even more.

C. On the other end of the spectrum, Rav Yosef Dovid Zintsheim (in his Yad Dovid on Menachos, available from Machon Yerushalayim,) writes that according to Rabba, if you cook food with the bald intention of Chillul Shabbos, and you end up using the cooked food for the sick person, the chillul Shabbos will be stricken from the record. (This is not so different from Tosfos in Pesachim 46b.) This is even where the conditions didn't pertain at the time that you did the issur, kal vachomer where you do intend to save the life but you are generally indifferent to Shabbos.

IV

In the Chafetz Chaim on the Torah (after Parshas Teruma,) Rav Greiniman, the editor, says that he heard from a reliable person that he heard from the Chafetz Chaim that a person- even a king- that killed Amaleikim, but not to fulfill Hashem's commandment, is called a Rotzei'ach.

however, many achronim learn that even Abba Shaul only said כאילו and קרוב בעיני. The Nimukei Yosef on 18 says that bedieved it is חל because it's just a Derabanandikeh problem; while the Beis Shmuel in 166:5 says that the concept of lechatchila/bedieved applies here even if you hold it's a Deoraysa issue. To understand how Abba Shaul might hold there is an issur Erva De'oraysa but there is still a kinyan, see Reb Ahron Kotler's pshat and Reb Moshe's pshat (that Abba Shaul holds that unlike other dechiyos where the issur is nidcheh, in Yibum the issur and the Kareis remain, but his desire to be mekayeim the mitzva protects him from the punishment, but only if he had kavana.)) I'm just saying that the Rambam's pshat relates to our discussion, because the Rambam is saying that Abba Shaul's din applies absolutely to cases of דחויה and not at all to cases of הותרה. In fact, we pasken that Yibum is Hutra, so we don't hold like Abba Shaul's chumra. But Shabbos, most people hold, is דחויה, and so Abba Shaul's chumra would apply 100%, like Rav Shlomo Zalman says. And if you hold like the Rishonim and Achronim that Abba Shaul is is a din derabannan, then perhaps the logic of his din derabanan would apply here too.

The only problem I have is that most Achronim learn that the Rambam holds that in most cases מצות אין צריכות כוונה. If the Rambam holds מצות אין צריכות כוונה, how does the Rambam understand Abba Shaul? Who cares if Eishes Ach is Dechuya?

VI

And now, the answer to all these questions, at least to some extent, which has become clear in the marei mekomos we saw and which is explicit in the Aderes.

The Aderes in his Bnei Binyamin on the Rambam in 2 Hilchos Shofar 4Rambam there:

This din is not tied to the question of מצוות צריכות כוונה. Even if you hold Mitzvos do not need kavana, the lack of kavana still takes away the din of Dechiyah. It could be that you'll fulfill the mitzva. It could be that even in that case we would say מצות אין צריכות כוונה, but it will be a mitzva haba'a be'aveira, because there is no din of dechiyah.

Even the Radvaz would agree with this: even if you are being mekayeim the mitzvah, as far as dichui of issur goes, you need kavana. Where this comes from I have no idea.

This also would allow us to use the svara of the Beis Haleivi, at least as far as the dinim of dechiya go.

VII

The criticism of Pinchas, in our Parsha.
Rashi in the beginning of the Parsha, 25:11, brings the Gemara that the reason the passuk lays out Pinchas' yichus was because the people criticized him for killing Zimri and Kozbi. You, a descendant of Yisro, you have no right to do what you did. So the Torah says that what he did was not a vestige of his imperfect past, it was an expression of the kedusha and redifas Shalom of Aharaon Hakohen. Many explain their criticism as being that yes, a Kana'i is supposed to do that, but you're not on the madreiga of kana'us; you did it because you're a hot blooded vigilante who enjoyed the thrill of impaling them. The question remains, how is that a criticism? So what? Lemaiseh, he had the right to do what he did. The answer is, that Kana'us is not the law, it's הלכה ואין מורין כן, and it is meant exclusively for a person that has a single minded intention of preventing Chillul Hashem. But we never thought that this rule would apply outside of the din of Kana'us, to cases that are straightforward הלכה פסוקה, cases of simple and universally applied halacha. Apparently it does. Evidently, a "bad act" justified by mitigating circumstances or extreme necessity is only muttar when done with the correct kavanos.

VIIII recently saw this from Rav Bergman, Rav Shach's son in law, in his Shaarei Orah II on Parshas Pinchas, who says this in his father in law's name. He extends the rationale of the criticism of Pinchas to a Medrash (מדרש רבא בראשית פרשה נ"ו סעיף ד) by the Akeida. There seems to be a problem in it, but as far as our topic, it is another example of how the rule applies by all cases of Dechiya, and not just by the din of Kana'us.

The problem is that even if the Shvatim could reasonably accuse Pinchas of having some ulterior impure motive, that doesn't make any sense by Avraham Avinu at the Akeida. What possible other reason could he have for being makriv his son? But as far as the rule we're discussing, it is consistent with the Aderes and all the mar'ei mekomos we brought.

(Ironically, Rav Bergman then goes on to say that with this approach, we can explain the verbal attack on Pinchas-

so he uses Rav Shach's pshat in the Medrash to explain the criticism of Pinchas, while as I explain above, it is really not a chiddush in the case of Pinchas. The real surprise is its broad application to all cases of dechiyah, to all cases where only the ends justify the means.)

IX

To clarify: The Chasam Sofer is really just an application of Reb Elchonon and the Mishna Berura, that without kavana, there is no dechiya. The Aderes' rule means that even if you hold מצות אינן צריכות כוונה, by cases of Dechiya everyone will agree that מצות צריכות כוונה. Rav Kook said that even beyond מצות צריכות כוונה, the admixture of ulterior motive will passel the dechiya. But there is absolutely no way that Rav Kook means to apply that to סדין בציצת. So what matters is not the precise application of the rule. What matters is the concept:

All Cases of Dechiya Create Chumra in the Din of Kavana.

X

The rule is that all cases of dechiya create an increased requirement of kavana. But I think that everyone would agree that there is a difference between how this rule applies by קנאים פוגעים בו and how it applies by other דחיות. By קנאים פוגעים בו, the slightest ulterior motive makes it רציחה, and perhaps this is also true by מחיית עמלק. The achronim that we've seen differ as to the degree that this rule mandates kavana by general דחיות. Generally (with the possible exception of the Dibros Moshe cited above in V,) they hold that even if in כל התורה כולה you hold that מצות אינן צריכות כוונה, by דחיות we would say מצות צריכות כוונה. Furthermore, if your primary כוונה is something other than the mitzva, even if by other מצוות secondary כוונה is good enough to be called כוונה, in cases of דחיות it is not, and the דין of דחיה won't be חל. (Either because in cases of דחיות you need more כוונה to be יוצא the מצוה, or because the דין of דחיה is not חל unless you have a greater level of כוונה than is needed for general קיום המצוות. Again, see the Dibros Moshe cited above in V.)

XI

סוף דבר הכל נשמע. What do we come out with?
A rule, that all cases of dechiya increase the requirement of kavana.
And a practical Halacha- for a Shabbos bris, you cannot use a not-frum doctor who is doing the bris for health reasons or self-interest.

And I remain with two problems.
I still don't understand the Chasam Sofer's application to לא תעשון כן, because I would think that a net reduction in בזיון means it's not a case of דחיה, it is that there is no איסור at all, and the absence of כוונה should be irrelevant.
And I (and certainly the Radvaz and Reb Elchonon) still have a really, really hard time understanding Reb Shlomo Zalman's application of this rule to פיקוח נפש. The act of פיקוח נפש is a מכשיר where the whole purpose of the mitzva is the תוצאה of your act.